New York State Department of Environmental Conservation
Division of Environmental Permits, Region 9
270 Michigan Avenue, Buffalo, New York, 14203-2999
Phone: (716) 851-7165 FAX: (716) 851-7168
Website:www.dec.state.ny.us

August 7, 2000

John C. Grennell, Esquire
Hurst, Brothman & Yusick
Attorneys at Law
11 Maple Street
P.O. Box 192
Angola, New York 14006-0192

Dear Mr. Grennell:

PROPOSAL FOR A SOLID WASTE
MANAGEMENT FACILITY
TOWN OF BRANT, ERIE COUNTY

Thank you for your July 11, 2000, letter which referenced our telephone conversation of that date, during which you discussed potential regulatory requirements, procedures and requested advice on how the Town should proceed in evaluating the referenced proposal (assumed to be construction of a large 200+ acre municipal solid waste landfill), particularly in respect to a possible host community benefits package. It is our understanding that you are representing the Town of Brant in this matter.

We have carefully screened the believed location of the site in respect to environmental/regulatory criteria that would immediately be pertinent to any environmental application submitted by the unknown sponsors of Brant Landfill LLC. Please recognize that this screening did include property north of the Norfolk and Western/Penn Central (abandoned) railroad line that crosses the property; however, we are unsure as to whether that area is actually part of the proposal. Based on that screening, the following items are relevant and will have to be addressed in any Department of Environmental Conservation review procedure conducted after formal submission of applications for permit:

  1. A portion of the site appears to be within an archaeologically sensitive area, as shown on the New York State Office of Parks, Recreation and Historic Preservation (OPRHP) map. As part of the SEQR process, the Town should evaluate this concern. If you have any questions regarding this, you may wish to contact OPRHP (telephone number (518) 237-8643). Note that before this Department can issue any of the anticipated permits that will be required for a landfill (noted under this section), an appropriate archaeological investigation must be conducted in order to satisfy the New York State Historic Preservation Act.

  2. Our records indicate there are several gas wells located within the proposed project site (see enclosed map). It will be necessary to determine whether the well is functional or has been appropriately plugged for public safety purposes. If formal applications are made to this Department, the project sponsors will be directed to contact Mr. John Dahl of our Regional Minerals Resources Unit (Olean Sub-office, telephone number (716) 372-5636) in order to obtain appropriate information and/or schedule a site inspection by Department staff to determine whether there may be any problems related to the well.

  3. The site is located within Agricultural District #10. The Erie County Soil and Water Conservation District would like to be notified of any projects which are being proposed that would affect agricultural districts so that they may inspect the site to evaluate potential agricultural impact. That agency's address and telephone number are as follows: Erie Soil & Water Conservation District, 50 Commerce Way, East Aurora, New York 14052, 652-8540. By copy of this letter, the District is being informed of this potential project.

  4. Note that the United States Department of the Army, Corps of Engineers (COE), Buffalo District Office (1776 Niagara Street, Buffalo, New York 14207, telephone number (716) 879-4330) has authority under Federal law to regulate wetlands in New York State. It is likely that a COE permit may also be required before any landfill construction could occur. During a formal application review, it is probable that this Department would seek the participation of the COE at a meeting(s) related to Federal wetlands/mitigation and associated landfill facility locational changes and since that agency may request Water Quality Certification from this office as a prerequisite to any Federal approval that agency may require.

  5. Department map resources indicate a confined aquifer is located to the west of the project site. A thorough geological investigation will have to be conducted in order to determine the adequacy of soils for landfill construction and exact location of the aquifer and any recharge area since the actual location of an aquifer under a proposed landfill could potentially prohibit such a project.

Anticipated New York State Environmental Conservation Law Department Permits, Among Others

Since the project will involve five or more acres of soil disturbance, on-site stormwater discharges are regulated by the Department and can be authorized under the State Pollution Discharge Elimination System General Permit for Stormwater Discharge From Construction Activities. You are, therefore, required to file a Notice of Intent, Termination and Transfer (NOITT) (enclosed) by sending it to NYSDEC, Bureau of Water Permits, 50 Wolf Poad, Albany, New York 12233-3505. Further information pertaining to filing the required Notice of Intent forms can be obtained by calling (518)457-0624.

I believe that the Town should proceed very cautiously in its attempt to objectively review the possible construction and long term operation of a privately owned landfill within its boundaries and the potential significant host community benefits that might also be accrued from such an enterprise. Not only do specific host community benefits have to be made legally binding like any contractual arrangement, but in my opinion, the type of landfill, the exact size, configuration and height of the landfill, including other solid waste operational handling options, permanently defined screening/landscape/buffer zones, closures (land use options) the possibility of gas cogeneration and perpetual care need to be legally memorialized to protect the community in the future from a myriad of possible changes) including expansion, that could become legitimate permit amendment requests to this Department) and which would likely be approved if the submissions complied with the applicable rigorous New York State Regulatory requirements.

I would suggest contacting other communities, which have developed host community benefit agreements for private sector operated landfills, such as the Towns of Porter and Lewiston (Niagara County), the Town of Angelica (Allegany County), the Town of Sardinia (Erie County) and the town of Farmersville (Cattaraugus County) in order to determine how they proceeded and what was done legally to control the landfill, set limits and protect the people in the community from unforseen concerns/changes over the long term.

Local discretionary approvals (including host community benefits agreements) should not be made until State Environmental Quality Review Act requirements have been satisfied, including the selection of an appropriate SEQR Lead Agency (probably this Department) and preparation of a draft environmental impact statement to comprehensively evaluate the proposal. I strongly recommend that we meet at this office (with or without project sponsor attendance) to discuss regulatory requirements and procedures in greater detail if that is convenient and can be scheduled

Lastly, a project notification sheet (attached) written by concerned landowners has come to my attention. Whether all the information contained therein is completely factual or not, I can not determine, but I can assure you that any suggestion ""that the proposed iandfill is a "done deal" ,""is certainly not the case. All decisions made by this Department relative to any permit applications we may receive from a landfill project sponsor will be comprehensively reviewed and will be evaluated pursuant to all the pertinent New York State Environmental Conservation Law regulatory requirements that apply. Such regulatory reviews, including public participation options and the possibility of litigation normally take many years to complete and then the final decision making occurs. to issue or deny the permits.

I hope this letter is helpful. Please do not hesitate to contact me, Mr. Douglas Borschel, Environmental Analyst I or Ms. Penny Dempsey, Permits Division Program Aide, if you have any questions or require further information.

Sincerely,


Steven J. Doleski
Regional Permit Administrator

The Honorable Samuel Chiavetta, Jr., Supervisor, Town of Brant, w/attach
Ms. Rose Marie DeMaria, Brant Town Clerk, w/attach
Mr. Douglas Borschel, Region 9 Division of Permits
Ms. Penny Dempsey, Region 9 Division of Permits
Mark Hans, Region 9 Division of Hazardous and Solid Wastes
John and Ms. Betty A. O'Donnell, w/attach
Mr. Robert A. Gerhard Ill, Brant Landfill LLC, w/attach



ATTACHMENT

08-06-00

Proposed Solid Waste Management Facility
in the
Town of Brant

Proposal Contact:
Robert A. Gerhard III
Gerhard/ALCEN
P0 Box 233
Derby, New York 14047
716-549-4107

Contact person will not divulge who he is representing. Very quietly the contact person has been negotiating with residents in the Town of Brant for purchase of properties 150% to 300% of the worth of the properties. Brant residents have just become aware of the purpose of these land option deals within the past two weeks!

Presently five (5) properties have "signed on with Mr. Gerhard, supposedly totally 600 acres thus far. Mr. Gerhard has reported to phone callers that the goal is 1000 acres and the proposed landfill is a "done deal".

The Town of Brant has a law prohibiting privately owned landfills or refuse endeavors. Mr. Gerhard will be presenting a proposal to the Brant Town Board at its Tuesday, August 8, 2000, 8 PM meeting, supposedly asking for a "variance" for the landfill.

Mr Gerhard's proposal includes $5 million dollars per year to the Town of Brant and town taxes paid for ??? residents.

Possible money backer is Allied Waste Industries, Inc. ??? who just "integrated" Browning-Ferris Industries, Inc. (BFI) into their operations located in Scottsdale,

BRANT OFFICIALS:
TOWN SUPERVISOR SAMUEL CHIAVETTA
BRANT TOWN CLERK JAMIE NOLAN
716-549-0282

PROPOSED LOCATION:
Town of Brant,
Southside of Cain Road
(between Rt. 5 & Rt. 20)

John & Betty A. O'Donnell
Hammond Rd.
Angola, NY 14006


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